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framed to meet the defect dieclosed by Dumpor's case, come an amicus curice in certain courts. “Will your although, as we all know, the doctrine of that case died lordship allow me," says a learned gentleman in the more than twenty years ago. Why is this? There back benches, “as amicus curice, to refer your lordship are several causes. One is the agreement of the parties, to the case of Jones v. Smith, fifteen Vesey, at page one which is very commonly for a lease on the same terms as hundred and twenty-one.” “Fetch 15 Vesey," says the those on which the last tenant held the premises. Here judge to his officer. Vesey is brought. “Mr. Brown, the solicitor has no alternative but to repeat the cove. what has this got to do with the case in hand? You've nants of the old lease. Another cause is the conserva overlooked the facts on which the decision in that case tism of the estate offices of large proprietors or corpora was based.” And 15 Vesey descends with ominous tions. The legal effect of the old form is known; the rapidity to the officer. In this case, our correspondent old form is kept in print, and it is considered desirable will observe, the amicus curice is not “ feed." The that all the tenants should hold subject to the same pro origin of the amicus curice is, it has been stated, to visions, Another cause is the conservatism of the solicitor be found in the Roman law. A judex, before deciding of the intending lessee. Any unusual provision (which a case, was entitled to take the advice of “friends, will never be in favour of the lessee) is struck out, the acquaintances, and legal amateurs,” but was not bound reason given in the margin being simply“ This is unusual.” either to seek, or to adopt, their opinion (see Colquhoun's And lastly, the authoritative collections of precedents of Summary of Roman Law, I. 35). The custom was leases being always edited by counsel, who have seldom established in Lord Coke's time, for he says that before them any other leases than those of exceptional when a judge is doubtful or mistaken as to any question importance, which are granted by large proprietors or of law, he may be informed by any bye-stander, as an corporations having traditional forms of lease, the amicus curice. It has also been thought that a matter stereotyped covenants are in the precedents taken from can be made to appear by suggestion on the roll by an these leases to save the trönble of framing them amicus curice, although in Smyth v. Irish (2 Keb. 548) anew. We do not hesitate to say that there is no it was said that “as amicus curiæ is not usual, by pleading thoroughly satisfactory collection of precedents of leases it cannot be.” In Rex v Vaux (Comb. 13) it was held before the public. For instance, where can you find that any person could, as an amicus curiæ, move to a full and complete model of an underlease ? Some expe quasb a vicious indictment, since judgment would have rience of drafting and knowledge are requisite, no doubt,
to be arrested in the event of a trial and verdict. We for the task of framing one, but we cannot doubt that may add that the late Lord CAMPBELL, when at the bar, the learned editors of the leading collections of pre. was on one occasion “ deputed” by the Chief Justice cedents possess these qualifications, if they would only to go, as amicus curiæ, into the Court of Queen's take the trouble to consider the question. But it is not Bench to ascertain the practice of that court as to taking desirable to enter on the task with revolutionary fervour a cause out of its turn to prevent an injunction in equity and without much consideration. For instance, we have (see Goldschmidt v. Marryat, 1 Camp. 559); and upon his always regarded with considerable interest à certain return Mr. CAMPBELL “certified ”the rule in such matters form of “sub-lease," given in a well-known work as adopted by Lords Kenyon and ELLENBOROUGH. (not mainly devoted to precedents), wherein the simple reader is warned that a sub-lease should never (the italics are the editor's] be drawn in the same words
A CORRESPONDENT of the Times has drawn attention to as the original lease. Duly following out this great
the fact that affidavits are continually being lost at, or discovery, the editor, in his model “sub-lease,” makes
taken away from, the common law judges' and masters' the sub-lessee covenant only to pay rent and perform the
chambers. He says that within the last few months no less covenants in the original lease, except the covenant for
than three affidavits have disappeared in cases in which payment of rent and other excepted covenants ; ap
he has been concerned, and he understands it is still parently forgetting that the effect of this will be to
a common practice for the officials at chambers to hand enable the original lessor, but not the underlessor, to
the affidavits back to the solicitors' clerks to enable them enter and leave notice to repair; and to render the con
to draw up the orders which have been obtained upon sent of the original lessor, but not of the underlessor,
them. Under the rules of April, 1880, it is provided necessary to an assignment or underlease! We agree
that every affidavit shall be filed in the Central Office, with our correspondent whose letter has suggested these
and that office copies of affidavits may, in all cases, be observations, that some reformation in the collections of
used, such copies being first duly authenticated by the seal precedents of leases is necessary, and we hope learned
of the office; but the writer says that when affidavits are editors of these collections will take heed to the matter.
filed, and office copies made for use in chambers, the masters disallow the costs of making office copies, and
so encourage the old practice of using originals. The SOME TIMB AGO we received the following letter :
writer has apparently overlooked the fact that the rule “Sir,- Will you inform me what is the locus standi of
does not require office copies to be taken, or forbid the an amicus curiæ in a case; whether he is feed, and if so
original affidavits to be used as evidence. As a matter of by whom; and by whom appointed ?"
fact even in the Chancery Division, in urgent cases, the As the letter is signed and bears an address, we presume original affidavit, having the filing stamp affixed, is used that it is genuine; and, therefore, in our humble in court, but it is afterwards handed to the registrar to capacity of missionary to those that sit in legal darkness, be filed. If, however, it is the fact that original affidawe shall endeavour to supply an answer. The “locus vits at the common law judges chambers are handed standi” of the amicus curice is the ignorance, or forgetful- back to the solicitors, and never filed, then of course ness, or want of candour of the counsel engaged in a case. | the rule is broken ; and it is easy to see that both the and the-well, momentary lapse of memory on the part Revenue and the suitor are likely to lose by this irregular of the judge. These little defects are allowed to be sup
practice. plied by any member of the bar who happens to be in court; who, so to speak, hands up a little lantern to help the judge through the dark ways of the law. The only IN VIEW OF THE PAINFUL INCIDENT which has resulted fees of the amicus curice are (1) the sense of having done in the loss of the head and neck of one of the figures of bis duty; (2) the thanks of the court; and (3) the re mounted policemen represented in relief on the Temple putation of being a man who has cases at his fingers' Bar Memorial, it may be well to warn persons afflicted ends. Fees belonging to classes (2) and (3), however, we with emotions of iconoclastic zeal that the law affords ought to warn our correspondent, in case he intends to means for their repression. By the Malicious Injuries become an amicus curice, are (like certain other fees) to Property Act (24 & 25 Vict. c. 97, s. 39) it is provided somewhat uncertain, It is not a profitable thing to be- that “whosoever shall unlawfully and maliciously destroy or damage any statue or monument exposed to appears to have been found convenient in many cases by public view, or any ornament surrounding such statue, mercantile men. But when the same test of value comes shall be guilty of a misdemeanor," and, on conviction, to be applied to other questions than the mere question shall be liable to imprisonment not exceeding six months, what is to be paid under the policy, which may arise and, if a male under sixteen years of age, may be whipped. between the parties with regard to their rights under the It is indeed possible, considering that the section is contract, it may be doubtful whether the law does not headed “Injuries to Works of Art,” to raise a question go beyond the actual intention of the parties, and whether it was intended to protect works such as the whether some amount of hardship may not arise. Never. Temple Bar Memorial, but the words of the section theless the law is obviously logical. There would be a apply to all “ monuments," and this is clearly a monu difficulty in saying that for certain purposes of the conment both of Temple Bar and of civic obstinacy.
tract the value of the subject-matter is to be regarded as settled by the agreement of the parties, and for others it is to be regarded as open.
It is clear law on an open policy that where the insurer VALUED POLICIES.
has paid for a total loss the salvage belongs to him.
Whatever may be the principle on which this depends, it The case of Burnand v. Rodoconachi (L. R. 5 C. P. D. seems to be settled law. If compensation in the nature 424), decided by Lord Coleridge, C.J., is one of some of damages is to be regarded as salvage withia this rule, interest, involving as it does a curious application of a | it would seem that the same principle must apply to it well-known principle of insurance law. It appeared that quite independently of any question of valued or open the plaintiffs were underwriters who insured under a I policy. But if the decision is to be treated as turning valued policy, covering war risks, the cargo of a ship on the policy being a valued one, it may be doubted subsequently destroyed by the Confederate cruiser The whether it was consciously intended by those who first Alabama. The damage done by The Alabama formed, devised the valued policy that the value of the subjectas will be remembered, the subject of a claim by the matter should be considered as fixed for the purposes of United States against England, which was referred to these collateral questions, as well as for the purpose of arbitration; and ultimately a large sum was awarded by determining the amount the underwriter was to pay for the arbitrators to the former nation. An Act of Congress a loss. That the underwriter should be entitled to the was passed for the purpose of regulating the distribution salvage to the extent of indemnifying him may be just, of this sum of money among the parties who had but it is conceivable that if he is entitled to the whole he suffered through The Alabama's operations. The Act may make a large profit out of the loss. In the case of provided that no claim should be admissible for any loss Young v. Turing (2 M. & G. 601), it was decided that, or damage for or in respect to which the party injured, for the purpose of determining whether there was a con. his assignees or legal representatives, should have re structive total loss, the valuation in the policy was to be ceived compensation or indemnity from any insurance
disregarded ; and Lord Abinger, in giving judgment says, company, but, if such compensation or indemnity so re “ The agreed value in the policy of the subject insured is ceived should not have been equal to the loss or damage intended to save the expense and doubt that may 80 actually suffered, allowance might be made for the attend the investigation of value as affecting the difference. And it was also provided that no claim question of compensation only.” The principle, however, should be admissible or allowed by or on behalf of any
of this class of cases is explained by Lord Coleridge, in insurance company or insurer, either in its or his own the judgment in the case on which we are commentright, or as assignee or otherwise, in the right of a per ing, as being that, although you are not bound hy the son or party insured as aforesaid, unless such claimant valuation in ascertaining whether there has been a total should show that during the late rebellion the sum of its loss, yet such a loss having once been established, then or his losses in respect to its or his war risks exceeded the for all purposes you are bound by the valuation. The sum of its or his premiums or other gains upon or in case of North of England Insurance Association v. Arm. respect to such war risks, and in case of any such allow strong (L. R. 5 Q. B. 244) is most distinctly in point, ance, the same should not be greater than such excess of and seems to go the whole length of the proposition on loss; and that no claim should be admissible or allowed which the judgment in the case of Burnand v. Rodo. arising in favour of any person not entitled at the canachi is based. There the ship was insured for time of his loss to the protection of the United States in £6,000 by a valued policy, the value declared being the premises, &c. The defendants, the owners of the £6,000. The ship was run down by another ship, and cargo, received the amount insured for as upor, a total the owners recovered £5,000 against the owners of the loss, but the cargo was really of greater value. The other ship. The real value of the ship was £9,000, and defendants subsequently claimed under the Act above there was no other insurance upon her. It was held that, mentioned, and received a part of the compensation fund as between the underwriter and the assured, the value in respect of their loss beyond the amount insured. The of the ship must be taken to be £6,000 for all purposes, plaintiffs sued them to recover the compensation money and that, therefore, the damages recovered, which were so paid to them. It was held that they were entitled to in the nature of salvage, belonged entirely to the underrecover.
writers. The question which in that case was pressed on The Lord Chief Justice of the Common Pleas appears the counsel for the shipowners was to whom the ship, if to base his judgment on the principles which have been it had been itself salved, would have belonged ? He applied by the decisions of the courts to valued felt constrained to admit that it would have belonged to policies. The broad principle wbich governs in these the underwriters, but he argued that that would have cases is that, for the purpose of all questions that may | been a case of salvage, and that the then present case arise between the parties to a valued policy with regard was not. The court, however, could not distinguish to the subject matter of the contract, the value as stated between the ship and the damages that represented her. in the policy must be taken to be the real value. The The rules that apply to the subject of damages for col. obvious immediate object of the valued policy was to lision in the Court of Admiralty seem to have prevented avoid, in the event of a loss and an action on the policy, | the question arising in its strongest form ; but suppose all question as to the real value of the subject-matter of the full value of the ship could be recovered as damages, insurance. Such policies appear to be, to some extent, in
e extent, in and apply that hypothesis to circumstances such as arose contravention of the policy of law which declares the | in the case of Vorth of England Insurance Association contract of insurance to be one of indemnity; but to v. Armstrong, then the result would have been that determine the value of something that no longer exists the underwriters, besides the premium, would have made in specie may be a very difficult matter, involving mucha gain of £3,000 out of the loss. This would be a expense and conflict of testimury, and this form of policy startling result, but we do not see why it is not a fair III.
test to apply to the principle on which the decision went, the principle of North of England Insurance AssociaIn such a case the result would not seem to be altogether tion v. Armstrong. Lord Coleridge, very rightly, as we just. The assured is not indemnified, but suffers a loss venture to think, looked to the substance of the thing, of £3,000, and the underwriter gets a windfall of £3,000 and decided that the amount recovered, though not for which he has given no sort of consideration. At the legally damages, was so far analogous as to come within same time it must be admitted that if it is clear that the same reasoning. He also held that the fact that inthe ship itself would have belonged to the underwriters, surers were excluded from the benefit of the Act, except however much its value exceeded the amount of the in certain cases, did not affect the right of the plaintiffs valuation in the policy, it is difficult to see how the to claim from the defendants that they should, according damages are to be dealt with on a different footing. We to the principles of English law, be held in the English do not say that it is not clear law that the ship would courts to be trustees for the plaintiffs of the amount have so belonged to the underwriters, but we are recovered out of the compensation fund. inclined to think that it is doubtful—if the thing were res integra-whether there is not some room for argument that all the underwriters ought to have in such a case is at the utmost a lien on the ship for the total amount THE YEAR'S SOLICITORS' CASES. they have paid. But the truth is that it would rarely happen, when a total loss was paid for, that the ship, after deducting the expenses of salvage and repairs, was It is satisfactory to find that the reports for the past year worth more than the valuation in the policy. Where the contain very few cases arising out of misconduct on the owners elect to abandon the ship and recover for a total part of solicitors. In Cave v. Cave (28 W. R. 764) Mr. loss, it may fairly be argued that, whatever the value of Justice Fry had reported to the official solicitor of the the salvage may ultimately prove to be, it was recovered | Chancery Division certain misconduct on the part of a on behalf of the underwriters, and ought to belong to solicitor which had been disclosed in the course of an. them.
action tried before him ; and he held, upon an applicaBut it seems to us that it may be urged that, whatever tion for leave to serve a notice calling upon the solicitor may be logical in theory, it is doubtful whether, prac. to show cause why he should not be struck off the rolls, tically speaking, damages stand on the same footing as that he had jurisdiction in the matter, since it was a salvage in specie. They are not the ship nor are they “further proceeding" in the action, within ord. 51, r. la, the remains of it; they are an indemnity or compensa and did not fall within the Lord Chancellor's Order of tion for the loss of it; and to the extent to which the June 19, 1877. Reg. v. Fullagar (41 L. T. N. S. 448) is. persons receiving them were indemnified aliunde, it may the only reported case of the prosecution of a solicitor. be right that they should account, either wholly or par. The prosecutrix was entitled to certain money which tially, for the damages to the indemnifier; but it seems a | had come into the hands of the prisoner, as solicitor to very strong proposition to say that, though they are not her trustees, on a mortgage being paid off. He wrote a indemnified in toto, they must hand over the surplus letter to her acknowledging the receipt of the money, and beyond what is necessary to indemnify the indemnifier. asking for instructions as to its re-investment. The In the case of Burnand v. Rodocanachi the actual figures prosecutrix replied that she would consult her trustees, are not given, and it must probably be presumed that and let him know the result. He appropriated the the sum awarded by the United States court did not money to his own use, but afterwards told her that exceed the sum paid under the policy. It is difficult to he had invested it on a fresh mortgage, and for six years suppose that it could have done so, because it will be he paid her what purported to be interest on the new observed that it is only the excess of loss beyond amount | mortgage. The Court for Consideration of Crown Cases of insurance that was admitted by the Act as a ground Reserved held that he had been guilty of fraudulently for claim to a share of the compensation fund, so that converting to his own use property which had been in. unless this excess exceeded £15,000, the amount to be trusted to him as a solicitor for safe custody (until the handed over by the defendants could not exceed the prosecutrix had informed him of her wishes as to re-inamount which the plaintiffs had paid. Therefore, no vestment) within the 24 & 25 Vict. c. 96, s. 76. such case arises as we have been supposing-viz., a case There were two cases of applications for attachment where the total amount recovered exceeds the sum paid against solicitors. In the first case (In re A Solicitor, by the underwriter ; but if such a case could and did L. R. 14 Ch. D. 152) the solicitor had not complied with arise, it will be observed that the reasoning on which the an order made on a petition for the delivery of certain decisions in North of England Insurance Association v. deeds to his client, and the Master of the Rolls held drmstrong and Burnand v. Rodocanachi are founded that the personal service of the order made on would apply, and would go the length of showing the petition, and the service of notice of motion. that the whole amount recovered must be handed for an attachment by leaving it at the solicitor's over by the incompletely indemnified insurer. We residence, were sufficient within ord. 44, r. 2, and ord.. cannot help thinking that the propositions that the 53, r. 3. In Tilney v. Stansfeld (28 W. R. 582) the compensation or damages necessarily in all cases action had been stayed, and the plaintiff's solicitor had represent the thing insured so absolutely as to be treated been ordered to pay the defendant's costs, on the ground as salvage, and also that the valuation is conclusive, not that the action was frivolous, vexatious, and an abuse of only for the purposes of an action on the policy, but to the process of the court. Substituted service of this show that the assured has been completely indemnified, order and of a subpoena for payment having been and so is bound to hand over all that he recovers, need directed and made, the defendant applied, under ord. further discussion before the law on this subject can be | 41, r. 1, for an attachment against the solicitor for disconsidered as established on a satisfactory basis. It may obedience. Hall, V.C., made an order for an attachment be observed that it is not very obvious on the principle to issue for the payment by the solicitor of the costs, as enunciated by the Queen's Bench-viz., that the damages between solicitor and client, of the application and of the are to be regarded in the same way exactly as the ship in attachment, but he directed that the order should not be specie-how the question of the policy being a valued one drawn up for a week, the solicitor being informed that it is material. The same result must follow whether the had been made and would be acted upon in default of policy is open or valued. The only question to which compliance at the end of that time. the form of the policy can be material is the question Barrow's case (28 W. R. 341) is an important how far the insurer has been completely indemnified. I decision as to the receipt by a solicitor of a com
There was, in the case we are discussing, a further mission upon the allotment of shares in a company. question whether the sum recovered by the cargo owners The directors of the company passed a resolution to from the compensation fund could be treated as allow a commission of two shillings and sixpence per analogous to legal damages so as to bring the case within ( share to any person introducing a shareholder. Mr.
Barrow, the solicitor and secretary to the company, in- the plaintiffs. The Common Pleas Division held that troduced a client as & purchaser of 2,000 shares, but the the interrogatories must be answered, for the plaintiffs, purchase-money for them was paid by the solicitor's having elected to answer through their solicitor, must be father, who was the chairman of the company, and to taken to have waived any privilege of which they might whom the shares were, immediately after the allotment, otherwise have availed themselves. In Tyas v. Brown transferred in consideration of the payment of five shil- | (28 W. R. 575), which was an action brought after the lings. The solicitor received the stipulated commission death of a lunatic to enforce an agreement made in on the 2,000 shares, but, upon the company being wound lunacy, Malins, V.C., ordered the production (inter alia) up, Bacon, V.C., ordered the money to be refunded, of the counsels' briefs used in the lunacy proceedings and holding that the solicitor, being in a fiduciary position, of the shorthand notes thereof. ought not to have received any commission.
Ex parte Duce, In re Whitehouse (28 W. R.501, L. R. Passing from the cases in which solicitors were 13 Ch. D. 429), is an important decision as to the use of personally interested, we have to notice 'several decisions a proxy by a solicitor in a liquidation proceeding. A as to the duty and responsibility of members of the pro. creditor sent a proxy signed by him in blank to his fession in particular circumstances. The question of a solicitor, who sent it to the debtor's solicitor. The solicitor's attestation of a bill of sale was dealt with in latter filled in his own name and voted with it in supthree cases, which have been before commented on by port of a composition. The Court of Appeal (affirming ns. In Hill v. Kirkwood (28 W. R. 358) the bill of the decision of the Chief Judge) held that, although the sale was attested by a solicitor who was not practising creditor's solicitor had given the debtor's solicitor no on his own account, but was managing clerk to the express instructions as to the use to be made of the grantee's solicitors. Malins, V.C., held that the attesta proxy, the creditor must be taken to have given an imtion was insufficient within section 10 of the Bills of Sale plied authority to vote on his behalf. Act, 1878, but this judgment was reversed by the Court Allen v. Lloyd (28 W. R. 8, L. R. 12 Ch. D. 447) inof Appeal. James, L.J., expressed a doubt whether the volved the question of the propriety of the appointment Act of 1878 applied at all as between grantor and as a receiver of a solicitor who was the executor of a grantee, and also whether, if it appeared from the attes- will which was being contested in the Probate Division. tation clause that the instrument had been explained to The solicitor commenced an administration action in the the grantor, the court had any power to inquire into Chancery Division against the testator's widow. Malins, the sufficiency of the explanation. The court also held V.C., on a motion in the action, appointed the plaintiff that there was nothing in the Act to require the attest (whose firm acted in the chancery proceedings both for ing solicitor to be in practice on his own account or him and for the defendant) as receiver, but the Court of unconnected with the grantee. In Davies v. Goodman Appeal discharged this appointment, and ordered the (28 W. R. 559, L. R. 5 C. P. D. 128) the Common Pleas plaintiff to pay the defendant's costs in both courts. Division had held that a bill of sale not attested by a The Master of the Rolls characterized the appointment solicitor and explained to the grantor was void as be as "obviously improper,” since it rendered it impossible tween the grantor and the grantee, but this decision to insure the proper checking of the receiver's accounts. was reversed by Lords Justices Baggallay, Bramwell, and Thesiger. Bramwell, L.J., laid down that the Bills of Sale Act, 1878, must be read as if section 8 in. claded section 10. The latter section was intended for the benefit of creditors as well as of the grantor, and IN RE CLAY AND TETLEY, C.A., 29 W. R. 5. since it attached no consequences to the non-fulfilment
There could be little doubt as to the decision in this of its provisions, there was no ground for holding
case. A testator directed that his debts should be paid the instrument void as between grantor and grantee.
by his executors, and, in case his personal estate was As to section 8, Thesiger, L.J., pointed out that
insufficient for that purpose, he charged his real estate the grantor was not included among the persons
with the payment of the deficiency. The executors against whom the bill of sale is to be void in the event
named in the will renounced, and letters of administra. of certain conditions, including attestation, not being
tion, with the will annexed, were granted to the widow, daly complied with. This case was followed by the
who, on the personal estate proving insufficient to pay Court of Appeal in Esc parte National Mercantile Bank,
the debts, entered into a contract for sale of a portion In te Haynes (28 W. R. 848, L. R. 15 Ch. D. 42),
of the real estate to make up the deficiency. The purbere James, L.J., observed, “The Legislature thought
chaser objected that an administratrix was not entitled that they would give to the grantor the protection of a
to sell real estate for payment of debts, and therefore solicitor pledging his word to the fact that he did give
the vendor could not make a good title to the property. the explanation. ... The validity of the bill of sale
The court laid it down unequivocally that there is no is not affected by the omission of the attesting
authority for saying that there has ever been implied a solicitor to give the explanation which he says that
power to sell real estate for payment of debts in an adbe has given." Baggallay, L.J., also laid down-what
ministrator, who, as the Master of the Rolls pointed was only hinted by the Lords Justices in Hill v. Kirk.
out, is not appointed by the testator, but is, in fact, pood—that the court could not go behind the Act
an officer of the court. A testator naturally exand inquire into the sufficiency of the explanation given. Saffron Walden Building Society V. Rayner (28
pects that the executors he has named will act, and
there is no reason to suppose that he intends an ad. W. R. 681, L. R. 14 Ch. D. 406) is an important decision
ministrator to have such a power. a to the effect of a notice given to the solicitors to
The question was then raised whether section 16 of trastees of the existence of an incumbrance on the trust fund, but it is now so well known, and has been so
Lord St. Leonards' Act was to be construed as conferring often discussed in our columns, that it is not necessary
this power on administrators. As to this the words of
the section seem conclusive. “The executor or executors to state it.
for the time being named in such will (if any)” are the Two cases during the year dealt with questions of
persons in whom the power of sale is vested, and “such privilege in connection with proceedings for discovery. power shall, from time to time, devolve to, and become In Mayor of Swansea v. Quick (28 W. R. 371, L. R. 5 vested in, the person or persons (if any) in whom the C. P. D. 106), interrogatories administered to the
tered to the executorship shall, for the time being, be vested.” It plaiutiff corporation were answered by their solicitor,
hardly needs to be pointed out that the section is who was town clerk of Swansea, and who declined to
carefully framed so as to confine the power to executors; give the information sought for, on the ground that it and so the court held, adding that it cannot be supposed referred to communications which were privileged as that the Legislature forgot that there are such persons having been made to him in his capacity of solicitor to as administrators,
SMITH V. ANDERSON, C.A., 29 W. R. 21.
LANDLORD AND TENANT. Average Association (23 W. R. 939), and Sykes v. [To the Editor of the Solicitors' Journal.] Beadon (27 W. R. 464). The exact point at issue was
Sir, In these days, when the district surveyors of the the same as in Sykes v. Beadon, which the Master of the
Metropolitan Board of Works are far more active than they Rolls had followed in this case-viz., What is an
used to be in discovering dangerous structures as defined “ association carrying on business for the purpose of
by the Building Acts, and when a large number of leases gain” within the meaning of section 4 of the Companies
for long terms are about expiring, and when leases of Act, 1862 ? The association in this case was for the
houses which have been built for many years are being purpose of making investments in the various sub
granted, a question must now be frequently arising as marine telegraph companies, and was called the “Sub.
to the extent of the liability of a lessee under an ordinmaaine Telegraph Trust.” It was constituted in a similar
ary repairing lease when the structural part of the way to the “ Government and Guaranteed Securities
premises demised to him is condemned by reason of age Permanent Trust” of Sykes v. Beadon—that is, it was
and the operation of the elements, and the lessee is constituted by a trust deed entered into between the
called upon to do the requisite repairs. trustees and a covenantee. This deed provided
It would appear that for the purposes of the Building for subscriptions of given amount, in return for
Acts the occupier of a house under the ordinary repairing which the subscriber received certificates for £100
lease for twenty-one years is the “owner," as defined payable to bearer. The amount subscribed was
by the Building Acts, and is liable to the Metropolitan to be invested in the purchase of shares of the given
Board of Works to do the repairs. The premises having class. The proceeds were to be applied in payment of a
been partially or wholly condemned, the unlucky lessee fixed percentage to certificate-holders, and the surplus
probably finds himself in the position of being unable in redeeming certificates by open purchase and by draw
to call upon his landlord to do the repairs in questionings at fixed values, twenty per cent. above the nominal
since the landlord is under no such liability save by exvalue. “Coupons of reversion” were given in return for
press covenant-and yet obliged to pay his rent, whether redeemed certificates, entitling the holders to a share in
the repairs are done or not. the trust funds when the trust came to an end. Powers
No doubt in many cases the landlord is, irrespective of varying securities at a profit were given to the trustees.
of his legal liability, willing to meet the tenant, and if The trustees and secretary were to have salaries. General
not to do at his own expense, at least to share the cost meetings were to be held in manner provided by the
of, the requisite repairs. In some cases, however, the Companies Act. The Master of the Rolls held that such
landlord is not so willing, and the position of the tenant “ trusts” were really companies, of which the trustees
is one of some difficulty and hardship. The repair is were directors and the certificate-holders shareholders;
probably one for which, as between the tenant and land. that they had in view the acquisition of gain by the
lord, the former is not liable to the latter, though as company and the individual members; and therefore, as
between the tenant and the Metropolitan Board of Works consisting of more than twenty members and being un
the former is liable to the latter. registered, were illegal associations. The Court of
In a recent case coming under my own observation, Appeal pointed out that the question was not whether
the lessee took some old premises on lease for seven, the certificate-holders had “ gain” for their object,
fourteen, or twenty-one years, having, prior to obtaining but whether they were carrying on a “business”
the lease, put them into habitable repair to the approval which had gain for its object. On the facts they
of the landlord's surveyor. By reason of the age of the held that the trust was really a trust, although the
external walls (not the party walls), the walls in ques. cestuis que trust might be more than usually numerous.
| tion have been condemned. Yet none of the provisions of the trust deed differed
The landlord is not liable to do the repairs, or, it from those found in ordinary trust deeds, except in
would seem, to bear the cost. The lessee is not liable to regard to meetings, and the difference was due to the
do the repairs by the terms of the lease, but being the numbers of the cestuis que trust. There was really no
owner, the Metropolitan Board of Works can require him “ business" to be carried on. If there was any “ busi
to do the repairs or fix him with the cost thereof. ness," it was carried on, not by the certificate-holders,
Probably but for the attention of the Metropolitan who only had to receive the dividends on their invest
Board of Works having been called to the condition of ments, but by the trustees, who were less than twenty
the walls, they might have lasted the length of the in number. The object was, no doubt, “gain," by
lease, but this is, of course, a matter of speculation. spreading the risk of investment on the principle of
The lessee does not wish to give up his lease, and averages--the success of most of the companies on
even if he did it is by no means clear that the landwhose shares investments were made being sure
lord would accept it; hence it is that if the lessee wishes to to compensate for the failure of others; but
retain his lease and to have premises of use to him, he must the gain was not sought by carrying on business. The
bear the expense of these repairs himself, which, but for decision is not, we believe, of so great practical im
the action of the Metropolitan Board of Works, the lessee portance as it might have been at an earlier date, for would not he
would not have been required, and might not have found many of the “ trusts,” alarmed by Sykes v. Beadon,
-it necessary, to do. have turned themselves into limited companies. But as
I think this is a case of some hardship, and that if, as a bearing on the question of the distinction between
matter of law, the lessee is not liable to his lessor to do director and trustee, the judgment of the court is of
repairs which he is required to execute by the Metroconsiderable interest.
politan Board of Works, the lessee ought to be
entitled to be recouped his expenditure by the lessor. The Local Examinations and Lectures Syndicate of the This remedy appears to be given in the case of party University of Cambridge have recommended that stu. structures. dents who intend to enter into articles of clerkship I think I am right in the view I take of the matter, to a solicitor may, though above the age of sixteen, be but if not I shall be happy to have it corrected by those admitted to the examination for students under the age whose knowledge and experience are greater on the subof sixteen; and that the names of students so admitted / ject than mine. and satisfying the examiners besent to the secretary of This leads me to remark that I think in many respects the Incorporated Law Society, but that no certificates be the present form of lease-which, by the way, has, in granted to such students, and that their names be not recent years, been modified in some particulars-requires inserted in the published class list.
l qualifying on several points.